Port: Move crimes in military to civilian courts

A graduating U.S. Naval Academy Midshipman marches into

A graduating U.S. Naval Academy Midshipman marches into the Academy's graduation and commissioning ceremonies in Annapolis, Md. (May 24, 2013) (Credit: AP)

Between October 2012 and June 2013, there were 3,553 complaints of sexual assault in the U.S. military. That was a 50 percent increase over the same nine-month period in 2011-12.

Though the number includes sexual assaults by civilians on service members, it reflects a large number of service member-on-service member attacks. And these are just the reported attacks. The Pentagon concedes that 60 percent of victims never report the abuse. In 2012, 26,000 women and men service members claimed to have been sexually assaulted.

The numbers have driven Congress to hold hearings on how the military is working to reduce the growing problem. Most of the Pentagon's efforts have been geared toward educating commanders on how to handle such cases.


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In the military, the decision to prosecute a criminal matter is not made by a professional prosecutor, but within the chain of command. Imagine a captain who is 26 years old and put in charge of 120 soldiers. Between juggling personnel and financial issues, he must focus on training and performing missions. And he is required to make prosecutorial decisions. It's not much better for a lieutenant colonel, who might have to worry about 1,000 soldiers, or a colonel, who might deal with 5,000. The general has 15,000 or more soldiers to manage.

Inconsistent prosecutorial decisions are the result. Service members who are liked by their command are unlikely to be punished; those who aren't will get punished for anything. If the commander is focused on the mission, he or she may simply ignore reported crimes.

In 2010, I assisted at a court-marital at Fort Dix involving a female guardswoman who said she had been raped by a fellow guardsman in Iraq. The colonel was asked why he didn't take action when it was reported. He answered: "I didn't have time for that high school drama."

The guardsman was convicted of an assault and given a letter of reprimand. The victim was diagnosed with post traumatic stress disorder and got a medical discharge.

Outcomes like this are not new. A military jury decides the sentence, which can be affected by military culture. In 1989, I was involved in the court-marital of a soldier who sexually harassed a female soldier. He was convicted and received no punishment. After the trial, he hugged the victim and said "no hard feelings."

The Army is making an effort. Last week, it issued a directive that initial dispositions of sexual assault allegations can be made only by a colonel. Over the summer, Brig. Gen. Flora Darpino was, in an unusual move, promoted two grades to lieutenant general and put in charge of the Army Judge Advocate General's Corps. But Darpino -- whom I know and respect -- can't fix a system that rests upon the harried shoulders of officers to whom criminal justice is a distraction. Sen. Kirsten Gillibrand (D-N.Y.) has proposed taking sexual assault cases away from the chain of command giving military prosecutors, rather than accusers' commanders, the power to decide which cases to try. Such legislation is a small step in the right direction, but there is a better solution.

The German Army has a different system. Crimes are prosecuted by the civilian authorities. Offenses against military order -- such as being disrespectful -- are handled administratively. Unlike the U.S. military, the German military does not have the power to jail soldiers. Even crimes in a war zone are prosecuted by civilian officials.

Too often, sexual assault victims in the military fear retaliation if they make a complaint. Removing prosecution of all crimes from the military and using civilian prosecutors should protect the victims.

It's time to consider the German model. Let's leave fighting to professional service members, and prosecution to professional prosecutors.

Attorney Gary Port of West Hemsptead has 27 years' experience as an army judge advocate. His opinions do not represent the Department of Defense, the U.S. Army or the Judge Advocate General's Corps.

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